Research and Information Service Research Paper

Research and Information Service briefings are compiled for the benefit of MLAs and their support staff. Authors are available to

discuss the contents of these papers with Members and their staff but cannot advise members of the general public. We do, however,

welcome written evidence that relate to our papers and these should be sent to the Research and Information Service,

Northern Ireland Assembly, Room 139, Parliament Buildings, Belfast BT4 3XX or e-mailed to RLS@niassembly.gov.uk

August 2011

Michael Potter

Equality and Human Rights Legislation in Northern Ireland:

A Review

NIAR 313-11

This paper reviews equality and human rights legislation in Northern Ireland in

the light of European Union and international obligations.

Paper 75/11 8 August 2011

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Northern Ireland Assembly, Research and Information Service 1

Key Points

Existing equality protections in Northern Ireland are extensive. However, whilst the

recent trend in equality legislation in Great Britain, Ireland and the EU is to streamline

standards into a single piece of law or at least fewer individual legislative Acts, in

Northern Ireland equality legislation remains unconsolidated, diverse and uneven in

implementation.

Development of single equality legislation has the potential to standardise the level of

protection across equality grounds and may also be less complex, easier to understand

and easier to amend. It is also argued, however, that the process may result in an

increased regulatory burden in both the public and private sector.

A Single Equality Bill to harmonise and update the disparate equality legislation in

Northern Ireland has been considered in the past, but since a consultation exercise in

2004 and a ministerial statement in 2005 there have been no further public

developments.

The Equality Commission has recently outlined areas where equality standards differ

between those contained in the Equality Act 2010 and the relevant law relating to

Northern Ireland. To bridge these gaps, and to harmonise equality standards across

the different grounds, the Equality Commission has made a number of

recommendations for legislative change here.

Competence in relation to anti-discrimination law has been devolved to the Northern

Ireland Assembly but not to the Scottish Parliament or the National Assembly for

Wales. The Assembly, therefore, has the ability to take forward a legislataive change

such as development of a single equality bill. However, much anti-discrimination

legislation is of EU origin and under the devolution agreement of 1998, the Assembly is

obliged to implement UK international and European Union obligations where they

relate to transferred matters. The manner in which this is done, however, is a matter for

local legislators. That said, if the EU standards as set out in the Directives are not

complied with, the UK government retains the right to impose legislation to fulfil its

obligations.

In addition to protections afforded directly by anti-discrimination law protections, there

are national, European and international human rights standards. While these

standards are less directly judicable than EU legislation, the UK has obligations to

uphold minimum standards that, if not met in Northern Ireland, can lead to international

embarrassment, and international law is seen as a normative standard for policy

development and can emerge in case law. In extremis, the UK retains the right to

impose legislation to fulfil these international obligations.

The establishment of a Bill of Rights for Northern Ireland to reflect the particular

circumstances of Northern Ireland as part of a post-conflict settlement, referred to in

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the Belfast Agreement, remains a contentious issue. There have been no further

public developments since a consultation in 2009 on the government‟s response to

advice on a Bill of Rights by the Northern Ireland Human Rights Commission.

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Executive Summary

This paper briefly examines Northern Ireland equality and human rights protections and

compares them with European Union and international standards. The international

processes of scrutiny are then reviewed to identify where change has been

recommended in Northern Ireland to meet international obligations.

Equality protections are extensive in Northern Ireland, with a duty on public bodies to

have due regard for equality between specified groups and legal protection against

discrimination against particular identities, although the level of protection varies

between groups. In the rest of the UK, the Equality Act 2010 harmonises much of the

equality legislation and brings the terminology and protection levels up to EU

standards, but this does not extend to Northern Ireland, which retains different pieces

of legislation, such as the Sex Discrimination Order 1976, Disability Discrimination Act

1995, Race Relations Order 1997, fair Employment and Treatment Order 1998,

Employment Equality (Sexual Orientation) Regulations 2003 and Employment (Age)

Regulations 2006.

EU Directives are required to be transposed into UK legislation, otherwise the

European Commission can initiate proceedings that may lead to a fine. The UK

Government informs the devolved administrations of any obligations that are

transferred matters, but retains the power to impose legislation on Northern Ireland to

fulfil EU obligations if necessary. Key equality Directives include the Race Directive

2000, the Framework Directive 2000, Gender Directives 2002 and 2004 and the Recast

Directive 2006. Plans are under way for a Horizontal Directive to harmonise equality

protections across a range of grounds. The diversity of equality legislation in Northern

Ireland means that when the EU introduces new cross-cutting equality standards,

several pieces of legislation have to be amended to meet them.

Human rights protections are guaranteed by the Human Rights Act 1998, which brings

most of the European Convention on Human Rights (ECHR) into UK law. In addition,

there are obligations to a range of UN treaties. Northern Ireland has been referred to in

a number of examinations of UK compliance, which can lead, at most, to international

embarrassment that these basic minimum standards are not being adhered to.

However, some treaties have additional mechanisms for complaint and/or investigation

procedures, such as the Convention on the Elimination of all forms of Discrimination

Against Women (CEDAW) and the Convention Against Torture, and the adoption by

the EU of the Convention on the Protection of Rights of People with Disabilities give

these obligations additional weight.

In reality, the justiciability of the UN treaties is questionable, relying on moral and

political grounds to compel compliance with international standards, but they remain as

reference points for human rights protections in international law and there are

opportunities to test some of the additional compliance mechanisms with reference to

NIAR 313-011 Equality and Human Rights Legislation in Northern Ireland

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Northern Ireland, although domestic and regional (i.e. European) remedies have to be

exhausted first.

An additional issue with regard to UN standards is the implementation of UN Security

Council Resolution 1325, which deals with the treatment of women in post-conflict

contexts, particularly in terms of representation and gender-specific post-conflict

reconstruction initiatives. While the Resolution is promoted overseas, Northern Ireland

is not deemed by the UK Government to have undergone a conflict that is applicable in

this case.

Council of Europe treaties, with the exception of the ECHR, tend to be less well known

and their standards are generally at the same level of justiciability as the UN treaties.

Application can be made to the European Court of Human Rights in relation to

breaches of the ECHR where domestic protection has proven inadequate. The

European Social Charter also includes mechanisms for redress that are as yet

untested in relation to Northern Ireland.

The EU Charter of Fundamental Rights has been enshrined in the EU legal

architecture since the ratification of the Treaty of Lisbon. While there have been some

doubts as to its direct justiciability, the status of the Charter in the EU means that future

legislation will be tested by its standards and it will be a reference point for rulings at

the European Court of Justice, but its full impact in terms of domestic redress remains

to be fully realised. A protocol in relation to the UK and Poland does not constitute an

opt-out of the Charter.

In terms of equality, the simplification and harmonisation of equality legislation has

been undertaken in the rest of the UK with the Equality Act 2010, in the Republic of

Ireland with the Equal Status Acts 2000-2004 and in the EU with recent Directives and

anticipated in the Horizontal Directive. There are compelling arguments for a Single

Equality Act in Northern Ireland. The Equality Commission has recommended

amendments to age, race, sex, disability and employment legislation.

Northern Ireland has been named in examinations of the UK by UN committees in the

non-compliance with treaty standards, including prison reform, the representation of

women, reproductive rights, poverty, deprivation and health issues, community

segregation, judicial and policing matters, academic selection, treatment of non-

nationals, treatment of Irish Travellers and the status of the Irish language.

Proposals for a Bill of Rights for Northern Ireland have been a matter of contention, but

this remains a live issue in terms of where Northern Ireland fits into the wider human

rights architecture developing in the UK and EU and what additional rights safeguards

are required for the specific circumstances of Northern Ireland.

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Contents

Key Points .............................................................................................................. 1

Executive Summary ................................................................................................ 3

1 Introduction ............................................................................................................ 7

2 Equality Legislation in Northern Ireland .................................................................. 8

3 European Union Legislation .................................................................................. 14

4 Human Rights ....................................................................................................... 18

5 Developments in the Legislation in Northern Ireland ............................................. 31

Appendix: Comparative Table of European and International Equality and Human Rights

Standards ............................................................................................................. 37

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1 Introduction

Northern Ireland has a mixture of legislation, some originating from direct rule in the

form of Orders in Council and some originating in the devolved Northern Ireland

Assembly. In addition, there are pieces of legislation in force in Northern Ireland that

refer to the whole of the United Kingdom, where competencies are not devolved, such

as immigration law. In Northern Ireland, anti-discrimination law is a devolved matter.

This is not the only legislation that impacts upon Northern Ireland, however. European

Union Directives are transposed into Member State legislation, which has impacts in

terms of UK-wide legislation, but also on devolved matters, necessitating legislation to

be introduced into the Northern Ireland Assembly. As far as other international

standards are concerned, such as United National conventions, while the standards

are recognised where the UK is a signatory, the extent to which they can be enforced is

debatable.

Northern Ireland has emerged from conflict with a variety of equality and human rights

provisions, primarily through the Northern Ireland Act 1998. Section 75 of the Act

requires public bodies to have due regard to promote equality between people on the

following grounds:

between persons of different religious belief, political opinion, racial group, age,

marital status or sexual orientation;

between men and women generally;

between persons with a disability and persons without; and

between persons with dependants and persons without.

The Human Rights Act 1998 brings the European Convention on Human Rights into

UK law.

This paper briefly examines European Union and international standards with regard to

equality and human rights, assesses the extent to which they are met by legislation in

Northern Ireland, determines what adjustments would have to be made to meet

European Union and international standards and what sanctions could be brought to

bear if the standards are not met.

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2 Equality Legislation in Northern Ireland

The department responsible for equality in Northern Ireland is the Office of the First

Minister and deputy First Minister (OFMdFM)1, although Section 75 of the Northern

Ireland Act 19982 provides that most public bodies have a responsibility for promoting

equality according to the grounds specified above. The Equality Commission for

Northern Ireland was established under Section 73 of the Act, which has the general

duties as follows3:

working towards the elimination of discrimination;

promoting equality of opportunity and encouraging good practice;

promoting affirmative/positive action;

promoting good relations between people of different racial groups;

overseeing the implementation and effectiveness of the statutory duty on public

authorities to promote equality and good relations;

overseeing the disability duties on public authorities;

monitoring, jointly with the NI Human Rights Commission, implementation of the

UN Convention on the Rights of Persons with Disabilities; and

keeping the relevant legislation under review.

The existing legislative framework for equality in Northern Ireland is as follows:

Age

Equality provisions on the grounds of age are a relatively recent development and

these are contained within the Employment Equality (Age) Regulations (Northern

Ireland) 20064, which were introduced as a response to the EU Employment

Framework Directive 20005. This legislation prohibits direct and indirect discrimination,

harassment and victimisation based on age in employment and vocational training.

An Older Peoples‟ Advocate6 was appointed in December 2008, but a Commissioner

for Older People is to be appointed during 2011.

There is no equality legislation specific to children, but the Children (Northern Ireland)

Order 19957 sets out the rights of children. There is a Strategy for Children and Young

1 OFMdFM equality web pages: http://www.ofmdfmni.gov.uk/index/equality.htm.

2 Northern Ireland Act 1998: http://www.legislation.gov.uk/ukpga/1998/47/contents.

3 Website of the Equality Commission: http://www.equalityni.org/sections/default.asp?secid=0.

4 Employment Equality (Age) Regulations (Northern Ireland) 2006: http://www.legislation.gov.uk/nisr/2006/261/contents/made.

5 EU Directive 2000/78/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:108:0033:0033:EN:PDF.

6 Website of the Older Peoples‟ Advocate: http://www.olderpeoplesadvocateni.org/.

7 Children (Northern Ireland) Order 1995: http://www.legislation.gov.uk/nisi/1995/755/contents/made.

NIAR 313-011 Equality and Human Rights Legislation in Northern Ireland

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People8 and a Commissioner for Children and Young People9 to advocate for their

interests.

Disability

The baseline equality legislation relating to disability is the Disability Discrimination Act

1995 (DDA)10, which prohibits discrimination in employment, access to goods and

services and in property and land transactions. The Disability Discrimination Act 1995

(Amendment) Regulations (NI) 200411, implementing the EU Employment Framework

Directive, prohibited harassment and ended the exemption of small employers from the

provisions and of certain areas of employment. The Equality Act 201012 has

superseded the DDA elsewhere in the UK, but the DDA remains the primary disability

legislation in Northern Ireland.

The disability legislation has been subject to a range of amendments, as follows:

The Disability Discrimination (Meaning of Disability) Regulations 199613, which

exempts certain conditions from the definition of disability

The Special Education Needs and Disability Act 200114, which provides for

measures against discrimination in education

The Disability Discrimination (Providers of Services) (Adjustment of Premises)

Regulations (Northern Ireland) 200315, which defines reasonable adjustments

for access to premises

The Special Educational Needs and Disability (Northern Ireland) Order 200516,

which makes further provisions against discrimination in education

The Disability Discrimination (Northern Ireland) Order 200617, which

introduced provisions against discrimination by local authorities and in public

transport

The Special Educational Needs and Disability (Northern Ireland) Order 2005

(Amendment) (Further and Higher Education) Regulations (Northern Ireland)

8 Ten Year Strategy for Children and Young People in Northern Ireland 2006-2016: http://www.ofmdfmni.gov.uk/ten-year-

strategy.pdf. 9 Website of the Northern Ireland Commissioner for Children and Young People: http://www.niccy.org/article.aspx?menuId=554.

10 Disability Discrimination Act 1995: http://www.legislation.gov.uk/ukpga/1995/50/contents.

11 Disability Discrimination Act 1995 (Amendment) Regulations (NI) 2004:

http://www.legislation.gov.uk/nisr/2004/55/contents/made. 12

Equality Act 2010: http://www.legislation.gov.uk/ukpga/2010/15/contents. 13

The Disability Discrimination (Meaning of Disability) Regulations 1996:

http://www.legislation.gov.uk/nisr/1996/421/contents/made. 14

The Special Educational needs and Disability Act 2001: http://www.legislation.gov.uk/ukpga/2001/10/contents. 15

The Disability Discrimination (Providers of Services) (Adjustment of Premises) Regulations (Northern Ireland) 2003:

http://www.legislation.gov.uk/nisr/2003/109/contents/made. 16

The Special Educational needs and Disability Northern Ireland) Order 2005:

http://www.legislation.gov.uk/nisi/2005/1117/contents/made. 17

The Disability Discrimination (Northern Ireland) Order 2006:

http://www.legislation.gov.uk/uksi/2006/312/pdfs/uksi_20060312_en.pdf.

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Order 200618, which extends disability discrimination protection in further and

higher education

The Disability Discrimination (Transport Vehicles) Regulations (Northern

Ireland) 200919, which extends provisions against discrimination to transport

The Autism (Northern Ireland) Act 201120, which seeks to resolve ambiguity

regarding the application of the DDA to Autism Spectrum Disorder (ASD)

Public authorities are required to produce disability action plans to the Equality

Commission on progress on duties relating to disability under the DDA21.

Gender

Legislation for equality between women and men originates in the Equal Pay Act

(Northern Ireland) 197022 and the Sex Discrimination (Northern Ireland) Order 197623.

The Equal Pay Act prohibits paying women and men differently for the same or

equivalent work. The Act was amended by the Equal Pay Act 1970 (Amendment)

Regulations (Northern Ireland) 200424 and the Equal Pay Act 1970 (Amendment)

Regulations (Northern Ireland) 200525, which make changes to tribunal proceedings

relating to equal pay in line with Council Directive 75/117/EEC26.

The Sex Discrimination Order (SDO) prohibits discrimination and outlaws harassment

on the basis of sex in the fields of employment, education and the provision of goods

and services. This has been amended as follows:

Sex Discrimination (Northern Ireland) Order 198827, which removes certain

exemptions and increases protection under certain contracts

Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland)

199928, which extend protections in the SDO to gender re-assignment.

Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations

(Northern Ireland) 200129, which implements Directive 97/80/EC30 on the

equal treatment of women and men.

18

The Special Educational Needs and Disability (Northern Ireland) Order 2005 (Amendment) (Further and Higher Education)

Regulations (Northern Ireland) Order 2006: http://www.legislation.gov.uk/nisr/2006/332/pdfs/nisr_20060332_en.pdf. 19

The Disability Discrimination (Transport Vehicles) Regulations (Northern Ireland) 2009:

http://www.legislation.gov.uk/nisr/2009/428/contents/made. 20

The Autism (Northern Ireland) Act 2011: http://www.legislation.gov.uk/nia/2011/27/pdfs/nia_20110027_en.pdf. 21

Disability action plans: http://www.ofmdfmni.gov.uk/index/equality/disability/draft-disability-action-plans.htm. 22

Equal Pay Act (Northern Ireland) 1970: http://www.legislation.gov.uk/apni/1970/32/contents. 23

Sex Discrimination (Northern Ireland) Order 1976: http://www.legislation.gov.uk/nisi/1976/1042/contents. 24

Equal Pay Act 1970 (Amendment) Regulations (Northern Ireland) 2004:

http://www.legislation.gov.uk/nisr/2004/171/contents/made. 25

Equal Pay Act 1970 (Amendment) Regulations (Northern Ireland) 2005:

http://www.legislation.gov.uk/nisr/2005/145/note/made. 26

Directive 75/117/EEC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31975L0117:EN:HTML. 27

Sex Discrimination (Northern Ireland) Order 1988: http://www.legislation.gov.uk/nisi/1988/1303/contents/made. 28

Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999:

http://www.legislation.gov.uk/nisr/1999/311/contents/made.

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Sex Discrimination (Northern Ireland) Order 1976 (Amendment) Regulations

200431, which extend the prohibition on discrimination to circumstances when

a relationship has ended

Employment Equality (Sex Discrimination) Regulations (Northern Ireland)

200532, which, on the basis of EU Directive 2002/73/EC33, define harassment,

indirect discrimination and genuine occupational requirements and extend sex

discrimination to pregnancy and maternity

Sex Discrimination (Northern Ireland) Order 1976 (Amendment) Regulations

200834, which more effectively implement Directive 2002/73/EC in terms of the

definitions of harassment and discrimination on the grounds of pregnancy and

maternity

Sex Discrimination (Amendment of Legislation) Regulations 200835, which

extend the principle of equal treatment of women and men to access to goods

and services, implementing EU Directive 2004/113/EC36

In addition, the Maternity and Parental Leave etc. Regulations 199937 extend provisions

for parental leave to implement EU Directive 96/34/EC38 and unfulfilled elements of

Directive 92/85/EEC39, which impacts mainly on women‟s equality in employment. The

Maternity and Parental Leave (Amendment) Regulations 200240 amend the 1999

Regulations by extending maternity leave to 26 weeks and the Employment (Northern

Ireland) Order 200241 outlines statutory rights to parental leave and pay.

Northern Ireland has a Gender Equality Strategy42, which identifies key areas of action

to address gender inequalities.

Race and Ethnicity

The Race Relations (Northern Ireland) Order 199743 prohibits direct or indirect

discrimination or victimisation on the grounds of colour, race, nationality or ethnic or

29

Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001:

http://www.legislation.gov.uk/nisr/2001/282/contents/made. 30

Directive 97/80/EC (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:014:0006:0008:EN:PDF) was required

to be implemented in the UK by Directive 98/52/EC (http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1998:205:0066:0066:EN:PDF). 31

Sex Discrimination (Northern Ireland) Order 1976 (Amendment) Regulations 2004:

http://www.legislation.gov.uk/nisr/2004/172/contents/made. 32

Employment Equality (Sex Discrimination) Regulations (Northern Ireland) 2005:

http://www.legislation.gov.uk/nisr/2005/426/contents/made. 33

EU Directive 2002/73/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:269:0015:0020:EN:PDF. 34

Sex Discrimination (Northern Ireland) Order 1976 (Amendment) Regulations 2008:

http://www.legislation.gov.uk/nisr/2008/159/contents/made. 35

Sex Discrimination (Amendment of Legislation) Regulations 2008: http://www.legislation.gov.uk/uksi/2008/963/contents/made. 36

Directive 2004/113/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:373:0037:0043:EN:PDF. 37

Maternity and Parental Leave etc. Regulations 1999: http://www.legislation.gov.uk/uksi/1999/3312/contents/made. 38

EU Directive 96/34/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1996:145:0004:0009:EN:PDF. 39

Directive 92/85/EEC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31992L0085:EN:HTML. 40

Maternity and Parental Leave (Amendment) Regulations 2002: http://www.legislation.gov.uk/uksi/2002/2789/contents/made. 41

Employment (Northern Ireland) Order 2002: http://www.legislation.gov.uk/nisi/2002/2836/contents/made. 42

Gender Equality Strategy 2006-2016: http://www.ofmdfmni.gov.uk/index/equality/gender-equality/our-strategy.htm.

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national origin in employment, education, the provision of goods, facilities or services

and property management. Irish Travellers are also named in the legislation as an

ethnic group.

This has been amended by the Race Relations (Amendment) Regulations (Northern

Ireland) 200344, which, to implement Directive 2000/43/EC45, refines the definitions of

indirect discrimination and harassment and matters relating to genuine occupational

requirements and burden of proof in proceedings. This was amended again by the

Race Relations Order (Amendment) Regulations (NI) 200946 to give full effect to the

Directive in relation to defining indirect discrimination.

A Racial Equality Strategy47 expired in 2010, with a replacement not yet in place at the

time of writing, although a Racial Equality Forum is still operating.

The UK Border Agency is not included as a public body under Section 75 and operates

in Northern Ireland as a UK body with non-devolved powers. Under Section 19D of the

Race Relations Act 197648, it is not unlawful “to discriminate against another person on

grounds of nationality or ethnic or national origins in carrying out immigration

functions”.

Religious Belief and Political Opinion

The Fair Employment and Treatment (Northern Ireland) Order 199849 makes direct and

indirect discrimination and victimisation on the grounds of religious belief or political

opinion unlawful. This has been amended by the Fair Employment and Treatment

Order (Amendment) Regulations (Northern Ireland) 200350, which implement elements

of the Framework Directive51 in terms of defining indirect discrimination and

harassment.

Sexual Orientation

Equality legislation relating to sexual orientation has developed in the last decade. The

relevant legislation is as follows:

43

Race Relations (Northern Ireland) Order: http://www.legislation.gov.uk/nisi/1997/869/contents/made. 44

Race Relations (Amendment) Regulations (Northern Ireland) 2003:

http://www.legislation.gov.uk/nisr/2003/341/contents/made. 45

Directive 2000/43/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0043:en:HTML. 46

Race Relations Order (Amendment) Regulations (Northern Ireland) 2009:

http://www.legislation.gov.uk/nisr/2009/410/contents/made. 47

Racial Equality Strategy 2005-2010:

http://www.ofmdfmni.gov.uk/index/equality/race/race_publications.htm#racialequalitystrategyni2005. 48

Race Relations Act 1976: http://www.legislation.gov.uk/ukpga/1976/74/contents. 49

The Fair Employment and Treatment (Northern Ireland) Order 1998

(http://www.legislation.gov.uk/nisi/1998/3162/contents/made) repeals the previous legislation in this field, i.e. the Fair

Employment (Northern Ireland) Acts 1976 and 1989. 50

Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003:

http://www.legislation.gov.uk/nisr/2003/520/contents/made. 51

Directive 2000/78/EC, see Note 5 above.

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Employment (Northern Ireland) Order 200252, which gives same-sex couples

the same parental leave rights as other parents

Employment Equality (Sexual Orientation) Regulations (Northern Ireland)

200353, which implements the EU Framework Directive54 to prohibit direct and

indirect discrimination, harassment and victimisation on grounds of sexual

orientation.

Civil Partnership Act 200455, which formalises in legal terms same-sex unions

Equality Act (Sexual Orientation) Regulations (Northern Ireland) 200656, which

outlaw discrimination in the area of goods, facilities and services

A strategy on sexual orientation is forthcoming57.

52

See Note 40 above. 53

Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003:

http://www.legislation.gov.uk/nisr/2003/497/contents/made. 54

See Note 5 above. 55

Civil Partnership Act 2004: http://www.legislation.gov.uk/ukpga/2004/33/contents; Part 4 refers to Northern Ireland. 56

Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006:

http://www.legislation.gov.uk/nisr/2006/439/contents/made. 57

See the OFMdFM website: http://www.ofmdfmni.gov.uk/index/equality/sexual-orientation.htm.

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3 European Union Legislation

The legislation outlined in Chapter 2 indicated the extent to which Directives coming

from the European Union influence equality law in Northern Ireland, particularly in

areas such as age discrimination, equality between women and men and racial

equality. The UK, as a Member State, is obliged to transpose EU Directives into

domestic law, or other measures for implementation58, and is responsible for the

implementation of directives in devolved regions.

The powers to implement EU legislation are derived from the European Communities

Act 197259, as amended by the Legislative and Regulatory Reform Act 200660. The

Memorandum of Understanding on Devolution between the Westminster and devolved

administrations states61:

The devolved administrations are responsible for implementing international,

ECHR and EU obligations which concern devolved matters. In law, UK

Ministers have powers to intervene in order to ensure the implementation of

these obligations.

It is the responsibility of the relevant Whitehall Department to inform the devolved

administration of any responsibilities with regard to transferred matters62.

EU legislation originates in the European Commission63 and, following a wider

consultation procedure, is usually discussed and adjusted by the European Council64

and the European Parliament65. If passed, and the legislation relates to law that is to

be harmonised across the Member States, a Directive is issued, which is to be

transposed into domestic law in accordance with the legislative context of each

Member State. Failure to do so within a specified time limit can lead to a process

where the Commission engages with the Member State to ensure implementation.

The European Commission initially issues a Formal Notice of failure to implement a

Directive. The intention is to work with the Member State to co-operate in the

implementation of the Directive, but if this is not successful, the Commission issues a

Reasoned Opinion. This serves as a warning of legal action through the European

court system. If the matter is not resolved, the Commission refers the matter to the

58

There is a preference for non-regulation based provisions for implementation, see UK Government advice Guidance for

Transposition: How to Implement EU Directives Effectively, April 2011: http://www.bis.gov.uk/assets/biscore/better-

regulation/docs/t/11-775-transposition-guidance. 59

European Communities Act 1972: http://www.legislation.gov.uk/ukpga/1972/68/contents. 60

Legislative and Regulatory Reform Act 2006: http://www.legislation.gov.uk/ukpga/2006/51/contents. 61

Devolution: Memorandum of Understanding and Supplementary Agreements (2010), Paragraph 21:

http://www.ofmdfmni.gov.uk/memorandum_of_understanding_and_concordate_on_co-ordination_of_eu_issues_-

_march_2010.pdf. Section 24(1) of the Northern Ireland Act 1998 also forbids legislation or actions in Northern Ireland

that are incompatible with „Community law or Convention‟ and Section 26(1) regarding international obligations. 62

Memorandum of Understanding, Paragraph B4.16. 63

Website of the European Commission: http://ec.europa.eu/index_en.htm. 64

Website of the European Council: http://www.european-council.europa.eu/home-page.aspx?lang=en. 65

Website of the European Parliament: http://www.europarl.europa.eu/en/headlines/.

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European Court of Justice (ECJ)66 which, if the Member State is found to be in breach

of the Directive, can issue a fine that continues on a daily basis until the Directive is

implemented67. Individuals and other institutions can also refer cases to the ECJ

regarding a failure to implement a Directive.

European Commission Infringement Procedure

For example, a Formal Notice was issued to the UK in October 2003 regarding

implementation of the Race Directive (2000/43/EC) and a Reasoned Opinion in

February 2004, but it did not proceed to the fine stage for the UK (but it did for four

other states against which similar action had been taken at the same time)68.

The Commission has initiated proceedings against the UK on 78 occasions in the past

ten years, but none of these cases has reached the stage of a fine being issued69. This

includes an application against the UK for failing to notify the Commission on the

implementation of the Equal Treatment Directive70 in Gibraltar. Other recent

66

Website of the European Court of Justice: http://europa.eu/institutions/inst/justice/index_en.htm. 67

The infringement process is indicated in Article 258 of the Consolidated Treaty of the European Union:

http://www.consilium.europa.eu/uedocs/cmsUpload/st06655-re01.en08.pdf. 68

Erica Howard, The EU Race Directive: developing the protection against racial discrimination within the EU (2010), pp.33-34. 69

PQ 1611205 House of Lords, 27 April 2011:

http://services.parliament.uk/hansard/Lords/bydate/20110427/writtenanswers/part012.html. 70

Directive 2004/113/EC on the principle of equal treatment between men and women in the access to goods and services.

Identification of a failure to implement a

Directive after a deadline

Formal Notice issued by the European

Commission

Reasoned Opinion issued by the European

Commission

Referral to the European Court of Justice

Issue of a fine

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discrimination-related incidences where a Reasoned Opinion has been issued include

the following:

Reasoned Opinion to 14 states, including the UK, regarding the implementation

of the Race Directive, 27 June 200771

Reasoned Opinion to the UK regarding the incorrect implementation of the

Framework Employment Directive, 20 November 200972

Reasoned Opinion to the UK and Denmark for the incomplete implementation

of the Equal Treatment Directive, 20 November 200973

Reasoned Opinion to the UK and Italy on the failure to communicate

implementation of the Recast Directive, 28 January 201074

Reasoned Opinion to the UK to end discriminatory practices relating to the right

to reside for workers from eight of the accession states of 2004, 28 October

201075

Reasoned Opinion to the UK to amend legislation that permits differential pay to

non-UK seafarers, 27 January 201176

Where implementation has not been complete, the Commission may inform the

Member State, however, individuals can also raise implementation issues with the

Commission, as has been the case with sex discrimination legislation in Northern

Ireland, resulting in the introduction of the Sex Discrimination Order 1976 (Amendment)

Regulations (Northern Ireland) 2011 in March 2011.

While the EU had issued Directives relating to anti-discrimination measures in

employment for many years, the Treaty of Amsterdam in 1997 amended the EU Treaty

to require Members States to protect certain groups from discrimination. The new

measure led to a number of so-called „Article 13‟ Directives77, reflecting the relevant

Treaty article at the time, which currently exists under Article 19 of the present Treaty,

as follows78:

Without prejudice to the other provisions of the Treaties and within the limits of

the powers conferred by them upon the Union, the Council, acting

unanimously in accordance with a special legislative procedure and after

71

Directive 2000/43/EC: http://ec.europa.eu/social/main.jsp?catId=89&langId=en&newsId=114&furtherNews=yes. 72

Directive 2000/78/EC. Press release:

http://ec.europa.eu/social/main.jsp?catId=423&langId=en&newsId=639&furtherNews=yes. 73

Directive 2002/73/EC. Press release:

http://ec.europa.eu/social/main.jsp?catId=418&langId=en&newsId=638&furtherNews=yes. 74

Directive 2006/54/EC. Press release:

http://ec.europa.eu/social/main.jsp?catId=418&langId=en&newsId=672&furtherNews=yes. 75

Press release: http://ec.europa.eu/social/main.jsp?catId=457&langId=en&newsId=917&furtherNews=yes. 76

Press release: http://ec.europa.eu/social/main.jsp?catId=89&langId=en&newsId=979&furtherNews=yes. 77

Helen Meenan, Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (2007), p.3. 78

Consolidated Versions of the Treaty Establishing European Union and the Treaty on the Functioning of the European Union:

http://www.consilium.europa.eu/uedocs/cmsUpload/st06655-re01.en08.pdf.

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obtaining the consent of the European Parliament, may take appropriate

action to combat discrimination based on sex, racial or ethnic origin, religion

or belief, disability, age or sexual orientation.

The consequence of this was the production of a number of Directives relating to non-

discrimination79, significantly the following:

The Race Directive 200080 - This prohibits discrimination based on racial or

ethnic origin and defines direct and indirect discrimination and harassment,

covering the fields of employment, training, social protection, education and

access to goods and services

The Framework Employment Directive 200081 - This prohibits discrimination on

the grounds of religion or belief, disability, age or sexual orientation in

employment and defines direct and indirect discrimination and harassment

Gender Directives 2002 and 200482 - The first prohibits discrimination in

employment on the grounds of sex and defines direct and indirect

discrimination, harassment and sexual harassment and the second prohibits

discrimination in access to goods and services

The Recast Directive of 200683 consolidates sex discrimination law, repealing

Directives from before 2000 and also the Equal Treatment Directive of 2002, the detail

of which is contained within this Directive. Consequently, there is no intended action to

amend domestic legislation as a result of this Directive84.

The process of anti-discrimination law development has created inequalities between

equality grounds. For example, the Race Directive gives protections beyond

employment, but religion and belief, sexual orientation, disability and age are only

protected grounds in reference to employment. Similarly, the Directives relating to

gender are narrower in scope than the Race Directive with reference to access to

social welfare85. However, plans for a „Horizontal Directive‟ to harmonise the various

grounds are under debate in the EU institutions86.

79

Dagmar Shiek, „From EU Non-Discrimination Law towards Multi-Dimensional Equality Law for Europe‟ in Dagmar Shiek and

Victoria Chege, European Union Non-Discrimination Law: Comparative Perspectives on Multi-Dimensional Equality Law

(2009), p.4; European Agency for Fundamental Rights, Handbook on European Non-Discrimination Law (2010), p.14. 80

Council Directive 2000/43/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0043:en:HTML. 81

Council Directive 2000/78/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0078:en:HTML. 82

Council Directive 2002/73/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:269:0015:0020:EN:PDF;

Council Directive 2004/113/EC: http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:373:0037:0043:EN:PDF. 83

Council Directive 2006/54/EC: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:204:0023:0036:en:PDF. 84

The Office of the First Minister and Deputy First Minister has produced a table detailing how this legislation is already

transposed into domestic legislation in Northern Ireland: http://www.ofmdfmni.gov.uk/transposition-table. 85

Dagmar Shiek, „From EU Non-Discrimination Law towards Multi-Dimensional Equality Law for Europe‟ in Dagmar Shiek and

Victoria Chege, European Union Non-Discrimination Law: Comparative Perspectives on Multi-Dimensional Equality Law

(2009), pp.4-5. 86

European Agency for Fundamental Rights, Handbook on European Non-Discrimination Law (2010), p.14.

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One significant critique of EU law is that it applies primarily to EU citizens and by its

differential treatment of third country nationals, is not compatible with the effective

protection of human rights87.

The status of EU law in the UK may be clarified in the future. Clause 18 of the

European Union Bill, if passed, provides for an Act of Parliament to be passed before

EU law is applicable in UK law88. Currently, some interpretations of the European

Communities Act 1972 are that EU law has status in domestic law where there are

gaps between EU and UK legislation, as reflected in some case law, but this would

clarify the requirement that UK legislation under which EU obligations will be fulfilled

takes precedence89.

87

Erica Howard, The EU Race Directive: developing the protection against racial discrimination within the EU (2010), p.91. 88

European Union Bill: http://services.parliament.uk/bills/2010-11/europeanunion.html. 89

See the Explanatory Memorandum to the European Union Bill: http://www.publications.parliament.uk/pa/bills/lbill/2010-

2011/0055/en/2011055en.htm.

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4 Human Rights

The concept of human rights in the UK is not new, as the Magna Carta in 1215 and the

Bill of Rights of 1689 set historical precedents and the UK was one of the original eight

countries to ratify the European Convention on Human Rights (ECHR) in 195090.

However, it was not until 1998 that the substantive articles of the Convention were

brought into UK law, as the Human Rights Act 199891, in force from 2 October 2000.

The Human Rights Act places the European Convention on a footing where92:

Legislation must be deemed compatible with the Convention when passed

Public authorities must not act unlawfully in breach of the Convention

Courts have power of remedy for a breach of the Convention

The remedies that can be pursued under the Human Rights Act are as follows93:

If the public body is acting lawfully according to primary legislation, a

declaration of incompatibility with the Convention can be pursued

If a decision of a public authority is being challenged, a judicial review can be

pursued to quash the decision

If the complaint refers to an ongoing activity, an injunction can be pursued to

stop that activity

If the action has caused harm, damages can be pursued

If evidence is obtained in breach of a Convention right, the exclusion of

evidence can be pursued

If satisfaction cannot be obtained domestically, a case can be brought to the European

Court of Human Rights in Strasbourg. An application can be made by application form

or letter and should state the facts and the rights (by Convention Article) that have

been breached, which is then considered by the European Court for admissibility94. If a

case is accepted and pursued and a ruling goes against the state, the following

remedies to the judgement of the European Court are applied95:

Just satisfaction – a sum of money to the applicant

Individual measures – putting the applicant in a position as if the breach of the

Convention had not occurred

90

Mark Janis et al, European Human Rights Law (2008), pp.3-4; text of the European Convention on Human Rights:

http://www.hri.org/docs/ECHR50.html. 91

Human Rights Act 1998: http://www.legislation.gov.uk/ukpga/1998/42/contents. 92

David Hoffman and John Rowe QC, Human Rights in the UK (2006), p.55. 93

David Hoffman and John Rowe QC, Human Rights in the UK (2006), p.80. 94

Philip Leach, Taking a Case to the European Court of Human Rights (2005), pp.19, 47. 95

Lord Chancellor and Secretary of State for Justice, Responding to Human Rights Judgements: the Government Response to

the Joint Committee on Human Rights’ Thirty First Report of Session 2007-2008 (2009), p.4.

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General measures – prevention of the breach of the Convention happening

again

In real terms, observers have noted that, while there has been a considerable increase

in claims since the Human Rights Act, there is no more willingness by judges to rule

against the government than before the Act96.

In Northern Ireland, the ECHR is the reference point for defining human rights and the

standard by which Bills have to be scrutinised97.

While the ECHR is the primary human rights instrument that has been brought into

domestic legislation, the UK is signatory to a range of human rights obligations, which

are discussed below.

4.1 United Nations Treaties

The primary UN document for human rights is the Universal Declaration of Human

Rights in 194898, which provides a baseline minimum for human rights standards

globally, although, unlike conventions, it is not a binding treaty. Since then, there has

been a range of more binding treaties covering different areas of human rights.

Generally, the implementation of a UN treaty is overseen by a committee, which

examines signatory states at periodic intervals. Countries are required to provide a

report on progress in adopting the standards, other relevant national organisations,

such as NGOs, can contribute to a parallel report, the state is then examined by the

committee and concluding remarks are made with any relevant areas for action. This

process is summarised below.

96

David Weiden, „Examining the Influence of the European Convention on Human Rights in the Northern Ireland Courts‟ in

Social Science Journal (2009) 46 pp.150-163. 97

See the Northern Ireland Act 1998, Articles 13(4), 69(11)(b) and 98(1)(b); Schedule 1 Art.3(c); Schedule 7 Art.69(11)(b). 98

Universal Declaration of Human Rights: http://www.un.org/en/documents/udhr/index.shtml.

Examination of Compliance: Country

compliance measured against

human rights standards

Concluding Observations: Noting

areas of progress and areas of

concern

Government Report: Responding to

Observations

Parallel Report: By human rights

organisations

Shadow reports: by NGOs

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Most state reports tend to be overdue, but these are mainly from states that are ranked

lower on the Human Rights Development Index. Sessions tend to be delayed by a

number of years, but this differs according to treaty. There is some reliance on NGOs

to balance state reports when it comes to assessing compliance and a Committee

rapporteur would visit the country to gather evidence99.

There are two approaches to international human rights standards by states100:

1. Monist – upon ratification, international law becomes national law

2. Dualist – national and international law are separate

The UK takes a dualist approach, so unless international standards are transposed into

domestic legislation, they are not directly justiciable. However, the standards set by

the UN are the basic minimum expected to be implemented universally and as such

are aimed towards states which may not have the resources or welfare infrastructure

that are available to wealthier countries. Any failure to meet these minimum standards,

therefore, is a source of embarrassment to a country like the UK. In addition,

international treaties are binding in international law and the standards the UK has

signed up to can appear in case law, for example, at the European Court of Human

Rights101.

Some treaties have different mechanisms for monitoring the implementation of the

standards, which are briefly summarised individually below.

Disability

The international standards relating to disability are enshrined in the newest UN treaty,

the UN Convention on the Rights of Persons with Disabilities (UNCRPD)102, adopted in

2006. The Committee on the Rights of Persons with Disabilities103 has not yet set a

date for the examination of the UK, but a draft report from the UK government is

currently out for consultation104. This has a separate section on Northern Ireland and

references to Northern Ireland are made in each thematic section.

The UNCRPD differs from other UN treaties in that it has been ratified by the EU, which

means that it will now be used as a standard in the development of EU legislation

relating to disabled people. In Northern Ireland, the independent monitoring

99

Anne Bayefsky, The UN Human Rights Treaty System: Universality at the Crossroads (2001), pp.8, 42. 100

Lammy Betten and Nicholas Grief, EU Law and Human Rights (1998), p.12. 101

See, for example, Opuz v. Turkey ECHR 33401/02 9 June 2009; Demir and Baykara v. Turkey ECHR 34503/97 21

November 2006. 102

UNCRPD text: http://www.un.org/disabilities/convention/conventionfull.shtml. 103

Website of the Committee: http://www.ohchr.org/en/hrbodies/crpd/pages/crpdindex.aspx. 104

Consultation web page at the Office for Disability Issues: https://www2.dwp.gov.uk/odi/un-convention-on-the-rights-of-

disabled-people/have-your-say.asp.

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mechanism for the Convention comprises the Human Rights Commission105 and the

Equality Commission106.

Gender

The Convention on the Elimination of all forms of Discrimination Against Women

(CEDAW)107, adopted in 1979 and in force from 1981, is the primary UN treaty

governing the treatment of women. The Committee on the Elimination of

Discrimination Against Women108 last examined the UK in 2008. The following action

points with particular reference to Northern Ireland were included in the Concluding

Observations109:

Dissemination of understanding of the provisions and standards of the

Convention in the development of single equality legislation

Provision of separate facilities and improvement of conditions for women in

prison

Increase of the representation of women in the judiciary

Full implementation of UN Security Council Resolution 1325110

Initiation of a process of public consultation on the introduction of abortion law

The UK government responded to the Concluding Observations in 2009111, but the

substantive issues relating to Northern Ireland were not tackled. Indeed, the point that

Northern Ireland was congratulated on by the Committee, the proposed introduction of

single equality legislation, has not as yet come to pass in Northern Ireland.

The Optional Protocol to CEDAW112, to which the UK is signatory, allows for two further

mechanisms separate to the periodic examination procedure, as follows:

1. Communication by or on behalf of individuals or groups of complaints to the

Committee (Articles 2-4)

2. Inquiry by the Committee into „systematic or grave‟ abuse (Articles 8-9)

105

UNCRPD web pages of the Human Rights Commission:

http://www.nihrc.org/index.php?option=com_content&task=view&id=99&Itemid=107. 106

UNCRPD web pages of the Equality Commission:

http://www.equalityni.org/sections/default.asp?secid=6&cms=Policy_UNCRPD&cmsid=89_733&id=733. 107

Text of CEDAW: http://www2.ohchr.org/english/law/cedaw.htm. 108

Committee website: http://www2.ohchr.org/english/bodies/cedaw/index.htm. 109

Concluding Observations of the 41st Session of the Committee on the Elimination of Discrimination Against Women: United

Kingdom of Great Britain and Northern Ireland, 30 June – 18 July 2008: 110

See the section on Resolution 1325 below. 111

Government Equalities Office, Response by the United Kingdom (UK) and Northern Ireland (NI) to Select Recommendations

of the United Nations Committee on the Elimination of all forms of Discrimination Against Women following the

Examination of the UK and NI’s 5th and 6

th Periodic Reports on July 10 2008, July 2009:

http://www.equalities.gov.uk/pdf/ONE-YEAR-ON%20REPORT%20TO%20CEDAW%202009.pdf. 112

CEDAW Optional Protocol: http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N99/774/73/PDF/N9977473.pdf?OpenElement.

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Recourse to the Optional Protocol can only be undertaken once all domestic and

regional remedies have been exhausted. An evaluation of the Optional Protocol in

2008113 found that it had been used very rarely, and then by complainants in states that

were already committed to greater protection under the UNHCR114 and the two

complaints against the UK were inadmissible. Since the evaluation, four more

complaints have been processed by the Committee115. The inquiry procedure has

been invoked once, against Mexico.

While the Optional Protocol has been underused, it remains an instrument by which

individuals and NGOs can raise issues that can result in recommendations of individual

recompense and/or specific measures being undertaken by the State Party.

UN Security Council Resolution 1325 and the Beijing Platform for Action

The United Nations Security Council passed Resolution 1325 in 2000116, relating to the

treatment of women in conflict areas. This broadly calls for specific provisions for

caring for the needs of women and girls, recognition of the differential impact of conflict

on women and girls and the increased representation of women at all levels of

decision-making.

The UK Government promotes Resolution 1325 abroad, but this is not applied to

Northern Ireland. However, research evidence indicates the differential impact of the

conflict on women and the need for women‟s involvement in peacebuilding117 and

initiatives for building peace, such as the Programme for Peace and Reconciliation in

Northern Ireland and the Border Regions of Ireland, have referred to the Resolution for

specific actions relating to women118. Women‟s NGOs in Northern Ireland have also

campaigned for the extension of the Resolution to Northern Ireland119.

In terms of political representation, the Sex Discrimination (Election Candidates) Act

2002120 permits political parties to choose women in the place of men where there is

underrepresentation, should they chose to do so. However this measure has not been

utilised by the parties in Northern Ireland. Current representation in the Northern

Ireland Assembly is 20 of the 108 MLAs (18.5%).

113

Jim Murdoch, The Optional Protocol to the United Nations Convention for the Elimination of all forms of Discrimination

Against Women (CEDAW): The Experience of the United Kingdom (2008). 114

Complaints against Austria (2), Germany (1), Hungary (2), Netherlands (1), Spain (1), Turkey (1), UK (2). 115

Two complaints against France, one against the Netherlands and one against the Philippines. 116

Text of Resolution 1325 (2000): http://www.un.org/events/res_1325e.pdf. 117

For example, Michael Potter, „Women, Civil Society and Peacebuilding in Northern Ireland: Paths to Peace Through

Women‟s Empowerment‟ in Christopher Farrington (ed) Global Change, Civil Society and the Northern Ireland Peace

Process (2008). 118

For example, Special EU Programmes Body, Peace III: EU Programme for Peace and Reconciliation 2007-2013 Northern

Ireland and the Border Regions of Ireland – Operational Programme (2007), pp.44, 72:

http://www.seupb.eu/Libraries/PEACE_III_Reports_Pubs/PEACE_III_Operational_Programme.sflb.ashx. 119

For example, the event by the Northern Ireland Women‟s European Platform (NIWEP) „UNSCR1325 on Trial‟:

http://www.niwep.org.uk/id42.html. 120

Sex Discrimination (Election Candidates) Act 2002: http://www.legislation.gov.uk/ukpga/2002/2/contents.

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The Fourth World Conference on Women in Beijing in 1995 resulted in the Platform for

Action121, a declaration of intent to address fundamental disadvantages experienced by

women. The Platform constitutes commitments in terms of women and poverty, health,

education and training, violence against women, women in armed conflict, women in

the economy, decision making, human rights, gender stereotyping, inequality and

discrimination and the violation of the rights of girls. The UK report for the fifteen year

review of Beijing states122:

The Beijing Declaration and Platform for Action, alongside the UN Convention

on the Elimination of All Forms of Discrimination Against Women (CEDAW),

constitute the most comprehensive set of international commitments to gender

equality and women’s rights and will continue play an important role in guiding

the UK’s work to promote gender equality and women’s empowerment across

England, Northern Ireland, Scotland and Wales.

While the Declaration itself may not be directly justiciable, the UK has made a

commitment to its implementation.

Race and Ethnicity

The Convention on the Elimination of all forms of Racial Discrimination (CERD)123 was

adopted in 1965 and entered into force in 1969. The Committee on the Elimination of

Racial Discrimination124 last examined the UK in 2003 and is due to examine the UK

again in August 2011. The UK has submitted a report on how the provisions of the

Convention are being met, with detailed evidence from Northern Ireland125.

Article 14 of the Convention enables individuals to submit complaints to the Committee,

in the same manner as the procedure for CEDAW, but there is no inquiry system for

CERD. However, there is an Early Warning Procedure, where the Committee contacts

a state with regard to an impending breach of the Convention. This has occurred on 74

occasions since its adoption in 2007, in respect of 34 states and two international

bodies. The UK has been contacted once, in 2010, with regard to the eviction of

Romany and Irish Travellers from a site in England126.

Northern Ireland was not mentioned specifically in the 2003 Concluding Observations

for the UK, however, this precedes the period of significant migration to Northern

Ireland from 2004 and the resulting demographic change. The submission of the

121

The Beijing Platform for Action 1995: http://www.un.org/womenwatch/daw/beijing/beijingdeclaration.html. 122

Questionnaire to the Governments on the Implementation of the Beijing Declaration and Platform for Action (1995) and the

Outcome of the Twenty-Third Special Session of the General Assembly (2000) – UK Response, May 2009, p.25:

http://live.unece.org/fileadmin/DAM/Gender/documents/Beijing+15/UK.pdf. 123

CERD text: http://www2.ohchr.org/english/law/cerd.htm./ 124

Committee website: http://www2.ohchr.org/english/bodies/cerd/. 125

Reports are available of the Committee session page: http://www2.ohchr.org/english/bodies/cerd/cerds79.htm. 126

CERD Committee letter to the UK Government, 12 March 2010:

http://www2.ohchr.org/english/bodies/cerd/docs/UK_12.03.2010.pdf.

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Northern Ireland Human Rights Commission to CERD includes the following

concerns127:

The differential treatment of non-citizens

The exclusion of sectarianism as a form of racism, leading to insufficient

provisions to address sectarianism

The level of race hate crimes and the ineffectiveness of the framework to

prosecute offenders

Racial profiling by police and immigration officials

The situation and treatment of Irish Travellers

The World Conference Against Racism in Durban in 2001 resulted in the Durban

Declaration and Programme for Action128. Similarly to the Beijing Platform for Action,

the Durban Declaration does not constitute an international treaty, but contains a list of

internationally agreed principles and actions that states are expected to adhere to.

Reviewed at a conference in 2009, Durban does not have the same reporting

requirement as Beijing129.

In 1990, the Convention on the Protection of the Rights of all Migrant Workers and

Members of their Families130 was adopted. The UK is not a signatory to the

Convention, but the standards remain a reference point for the treatment of migrant

workers.

The Durban Declaration and Programme for Action and CERD were cited in

formulation of the Racial Equality Strategy for Northern Ireland131.

Age

There are no UN treaties separately protecting the rights of older people, but the UN

Convention on the Rights of the Child (CRC) 132 was adopted in 1989 and entered into

force in 1990. The Committee on the Rights of the Child133 last examined the UK in

2008 and the following concerns were raised specifically with regard to Northern

Ireland in the Concluding Observations134:

127

Northern Ireland Human Rights Commission, Submission to the Committee for the Elimination of all Forms of Racial

Discrimination: Examination of the Eighteenth and Nineteenth Periodic Reports of the United Kingdom of Great Britain and

Northern Ireland: List of Themes, February 2011:

http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/123/Submission_on_ICERD_(February_2011).pdf. 128

Durban Declaration: http://www.un.org/WCAR/durban.pdf. 129

Durban Review Conference 2009: http://www.un.org/durbanreview2009/. 130

Text of the Migrant Workers Convention: http://www2.ohchr.org/english/law/cmw.htm. 131

Office of the First Minister and Deputy First Minister, A Racial Equality Strategy for Northern Ireland 2005-2010, p.13. 132

Text of the Convention on the Rights of the Child: http://www2.ohchr.org/english/law/crc.htm. 133

Committee website: http://www2.ohchr.org/english/bodies/crc/. 134

Committee on the Rights of the Child Forty Ninth Session - Consideration of Reports Submitted by States Parties under

Article 44 of the Convention - Concluding Observations: United Kingdom of Great Britain and Northern Ireland, 28 October

2008: http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf.

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Riot control methods

Mental health as a result of the conflict

Child poverty

Segregation of education

Academic selection

Treatment of asylum seeking and migrant children

The Committee noted that the development of a Bill of Rights for Northern Ireland could

be an opportunity to incorporate the Convention rights.

Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR)135 was adopted in

1966 and entered into force in 1976. The UK was last examined by the Committee136

in 2008 and the Concluding Remarks included the following concerns137:

Inquiries into deaths and ministerial control under the Inquiries Act 2005

Different court proceedings to the rest of the UK, especially non-jury courts

The removal of deportation cases to Britain and lack of holding facilities in

Northern Ireland

The Covenant does not have any additional monitoring or enforcement mechanisms.

Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (CESCR)138 was

adopted in 1966 and was in force in 1976. The UK was last examined by the

Committee in 2009 and the Concluding Remarks139 included the following concerns

specific to Northern Ireland:

Draft Bill of Rights for Northern Ireland to be enacted

The lack of comprehensive equality legislation such as the Equality Bill (now

Act) in Northern Ireland

135

Text of the ICCPR: http://www2.ohchr.org/english/law/ccpr.htm. 136

Website of the Human Rights Committee: http://www2.ohchr.org/english/bodies/hrc/index.htm. 137

Consideration of Reports Submitted by States Parties under Article 40 of the Covenant – Concluding Observations of the

Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 30 July 2008: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G08/433/42/PDF/G0843342.pdf?OpenElement. 138

Text of CESCR: http://www2.ohchr.org/english/law/cescr.htm. 139

Consideration of the Reports by the States Parties under Articles 16 and 17 of the Covenant: Concluding Remarks of the

Committee on Economic, Social and Cultural Rights – United Kingdom of Great Britain and Northern Ireland, the Crown

dependencies and the Overseas Territories,12 June 2009: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G09/429/21/PDF/G0942921.pdf?OpenElement.

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Lack of abortion legislation on health grounds to prevent unsafe or clandestine

abortions in cases of rape, incest or foetal abnormality

Discriminatory nature of the Unauthorised Encampments (Northern Ireland)

Order 2005140 and the lack of accommodation provision for Roma/Gypsies and

Travellers

The level of inequality and deprivation in Northern Ireland

Alarming suicide rates in Northern Ireland

The lack of protection and promotion of the Irish language, lacking statutory

equivalence with Welsh or Scottish Gaelic

Other Rights

The Convention Against Torture was adopted in 1984 and entered into force in 1987141.

The Committee142 last examined the UK in 2004, the Concluding Observations of which

included that the UK should investigate all deaths by lethal force in Northern Ireland

and consider designating the Northern Ireland Human Rights Commission as a

monitoring body under the Optional Protocol143. The Optional Protocol in 2002 (in force

2006)144 established a Sub-Committee on Prevention which can visit states to

investigate allegations of torture and advise states in the prevention of torture.

The Universal Periodic Review was introduced in 2006 and looks at compliance with all

the human rights treaties at once145. The outcomes are very general and, at the

examination of the UK in 2008, while the outcomes of prosecutions relating to

paramilitary activity in Northern Ireland were raised as an issue during the session,

there were no recommendations specific to Northern Ireland in the final Working Group

report146. According to the four year cycle, the UK would be next examined in 2012.

4.2 Council of Europe Treaties

The human rights standards established through the Council of Europe147 are well

known through the European Convention on Human Rights, most of which is directly

justiciable through the Human Rights Act, with recourse to the European Court of

140

Unauthorised Encampments (Northern Ireland) Order 2005: http://www.legislation.gov.uk/nisi/2005/1961/contents. 141

Text of CAT: http://www2.ohchr.org/english/law/cat.htm. 142

Committee website: http://www2.ohchr.org/english/bodies/cat/. 143

Consideration of Reports by States Parties under Article 19 of the Convention - Conclusions and recommendations of the

Committee against Torture - United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas

Territories 10 December 2004: http://daccess-dds-

ny.un.org/doc/UNDOC/GEN/G04/451/02/PDF/G0445102.pdf?OpenElement. 144

Optional Protocol to the Convention Against Torture: http://www2.ohchr.org/english/law/cat-one.htm. 145

Office of the High Commissioner for Human Rights web pages on the Universal Periodic Review:

http://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx. 146

Reports from the UK examination in 2008 are available at:

http://www.ohchr.org/EN/HRBodies/UPR/PAGES/GBSession1.aspx. 147

Council of Europe website: http://www.coe.int/.

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Human Rights (see above)148. However, there are other Council of Europe Treaties

that are less well known, and although they do not carry the same legal weight as the

ECHR, they would have a similar status to the UN treaties.

Some of the Council of Europe treaties have associated monitoring systems and

committees which operate in a similar way as the UN treaties, the main ones being the

Charter on Regional or Minority Languages, Framework Convention for the Protection

of National Minorities and the European Social Charter. However, the relevant

committee visits the country being examined, rather than only sending a rapporteur,

and there is an active Commissioner for Human Rights149, who promotes human rights

standards among the 47 member states. There are 210 Council of Europe treaties150,

including additional protocols, so only some significant ones are outlined below.

Age

There are no treaties relating specifically to old age, but the UK has ratified the

Convention on the Legal Status of Children Born out of Wedlock151, Convention on

Recognition and Enforcement of Decisions concerning Custody of Children and on

Restoration of Custody of Children152 and the Convention on the Adoption of

Children153 (a revised Convention on the Adoption of Children154 and a Convention on

the Protection of Children against Sexual Exploitation and Sexual Abuse155 have been

signed but not ratified).

Gender

A Convention on Preventing and Combating Violence against Women and Domestic

Violence156 was adopted on 11 May 2011. The UK is not one of the initial 13

signatories.

Indigenous Language Rights

The UK has ratified the Charter on Regional or Minority Languages157, which has an

associated committee and monitoring system, examining state compliance every three

years. The UK was last examined in 2009, during which it was recommended that the

UK “adopt and implement a comprehensive Irish language policy, preferably through

148

The European Court of Human Rights only rules on the civil and political rights of the ECHR. 149

Currently Thomas Hammarberg; Commissioner‟s website: http://www.coe.int/t/commissioner/default_en.asp. 150

Full list of Council of Europe Treaties: http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG. 151

Convention on the Rights of Children Born out of Wedlock 1975: http://conventions.coe.int/Treaty/en/Treaties/Html/085.htm. 152

Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of

Children 1980: http://conventions.coe.int/Treaty/en/Treaties/Html/105.htm. 153

Convention on the Adoption of Children 1967: http://conventions.coe.int/Treaty/en/Treaties/Html/058.htm. 154

Convention on the Adoption of Children (Revised) 2008: http://conventions.coe.int/Treaty/en/Treaties/Html/202.htm. 155

Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse 2007:

http://conventions.coe.int/Treaty/EN/treaties/Html/201.htm; see also the associated website:

http://www.coe.int/t/dghl/standardsetting/children/default_EN.asp?. 156

Convention on preventing and combating violence against women and domestic violence 2011:

http://conventions.coe.int/Treaty/EN/Treaties/Html/210.htm; this Convention also has an associated Committee:

http://www.coe.int/t/dghl/standardsetting/violence/default_EN.asp?. 157

Charter on Regional or Minority Languages 1992: http://conventions.coe.int/Treaty/en/Treaties/Html/148.htm.

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the adoption of legislation” and a strategy for Ulster Scots158. The next examination is

in 2012.

The UK has also ratified the Framework Convention for the Protection of National

Minorities159, which likewise has a monitoring mechanism160. The last examination was

in 2007, including the following recommendations relating to Northern Ireland161:

Further efforts to collect data on minority ethnic groups

Promote more awareness of the benefits of shared housing and shared

education between the two main communities in Northern Ireland

Enhance the promotion of languages and cultures of the people of Northern

Ireland, noting the lack of clarity of the status of the Irish language

The next examination process for the UK is under way, with the UK making

commitments to cross-border broadcasting and an Irish Language Strategy in Northern

Ireland162.

Other Rights

There are no Council of Europe treaties relating specifically to disability, religious belief,

political opinion or sexual orientation, other than where they are mentioned in other

treaties, such as the ECHR.

The European Social Charter was ratified by the UK and contains specific rights to

work and working conditions, protection of children, young people and women,

vocational training, protection of health, access to social protection and welfare,

economic protection and to work in the states of other Contracting Parties163. The

Committee164 examines different articles of the Charter annually and there have been

no conclusions specific or exclusive to Northern Ireland in recent reports, although non-

conformity with Article 16165 of the Charter was raised in 2006 in respect of the lack of

guaranteed accommodation for Roma/Travellers/Gypsies166.

158

Recommendation RecChL(2010)4 of the Committee of Ministers on the Application of the European Charter for Regional and

Minority Languages 21 April 2010:

http://www.coe.int/t/dg4/education/minlang/Report/Recommendations/UKCMRec3_en.pdf. 159

Framework Convention on the Protection of National Minorities 1995:

http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm. 160

Advisory Committee website: http://www.coe.int/t/dghl/monitoring/minorities/default_en.asp. 161

Resolution CM/ResCMN(2008)7 on the Implementation of the Convention on the Protection of Regional Minorities by the

United Kingdom, 9 July 2008:

http://www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/PDF_2nd_CM_Res_UK_en.pdf. 162

Third Report Submitted by the United Kingdom Pursuant to Article 25, Paragraph 1 of the Framework Convention for the

Protection of National Minorities, pp.70-71:

http://www.coe.int/t/dghl/monitoring/minorities/3_FCNMdocs/PDF_3rd_SR_UK_en.pdf. 163

European Social Charter 1961: http://conventions.coe.int/Treaty/en/Treaties/Html/035.htm. 164

Committee website: http://www.coe.int/t/dghl/monitoring/socialcharter/default_en.asp. 165

The right of the family to social, legal and economic protection. 166

European Committee for Social Rights Conclusions XVIII-1 (United Kingdom) Articles 1, 5, 6, 12, 13, 16 and 19 of the

Charter, 2006, p.18: http://www.coe.int/t/dghl/monitoring/socialcharter/Conclusions/State/UKXVIII1_en.pdf.

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There is a collective complaints system where employers‟ organisations, trades unions

and registered international NGOs can make submissions to the Committee, but the

UK is not a signatory to the Additional Protocol that established this167. The UK is a

signatory to another Protocol to improve the reporting mechanisms of the Charter168

and to the revised Social Charter169, but neither has been ratified.

The Convention for the Prevention of Torture170 has been ratified by the UK and the

associated Committee171 visited Northern Ireland in 2008. While there were

recommendations with regard to policies and procedures in the prison system in

Northern Ireland, there were no recommendations relating to legislative change172.

The Convention Against Trafficking in Human Beings173 has been ratified by the UK.

Monitoring of the Convention is through a visit to the state by the Group of Experts on

Action against Trafficking in Human Beings (GRETA)174, the evidence from which is

considered by the Committee of the Parties to the Convention175. GRETA is to visit the

UK in the First Evaluation Round (2010-2013), for which an evaluation questionnaire

was sent in February 2011 with a deadline for response by September 2011.

4.3 Human Rights in the European Union

The European Union has long been concerned with employment rights, extending to

economic and social rights, rather than civil and political rights176. However, a Charter

of Fundamental Rights was developed and adopted by the EU in 2000, covering a

range of economic, social, civil and political rights177. According to some writers, the

ratification of the Treaty of Lisbon made the Charter binding in Member States Article 6

of the Treaty of the European Union178, as amended by Lisbon179:

now refers to the obligatory Charter of Fundamental Rights and thus provides

the European Union with a modern set of largely justiciable rights which can

be applied together with the fundamental rights derived by the European

167

Additional Protocol to the European Charter 1988: http://conventions.coe.int/Treaty/en/Treaties/Html/128.htm. 168

Protocol Amending the Social Charter 1991: http://conventions.coe.int/Treaty/en/Treaties/Html/142.htm. 169

European Social Charter (Revised) 1996: http://conventions.coe.int/Treaty/en/Treaties/Html/163.htm. 170

Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 1987:

http://conventions.coe.int/Treaty/en/Treaties/Html/126.htm. 171

Committee on the Prevention of Torture for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment:

http://www.cpt.coe.int/en/default.htm. 172

Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee

for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 18 November to 1

December 2008, 8 December 2009: http://www.cpt.coe.int/documents/gbr/2009-30-inf-eng.pdf. 173

Convention Against Trafficking in Human Beings 2005: http://conventions.coe.int/Treaty/EN/Treaties/Html/197.htm. 174

GRETA web pages: http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Monitoring/GRETA_en.asp#TopOfPage. 175

Committee web pages: http://www.coe.int/t/dghl/monitoring/trafficking/Docs/Monitoring/COP_en.asp#TopOfPage. 176

Lammy Betten and Nicholas Grief, EU Law and Human Rights (1998), p.70. 177

Text of the Charter of Fundamental Rights of the European Union: http://www.europarl.europa.eu/charter/pdf/text_en.pdf. 178

Consolidated Versions of the Treaty Establishing European Union and the Treaty on the Functioning of the European Union:

http://www.consilium.europa.eu/uedocs/cmsUpload/st06655-re01.en08.pdf. 179

Wolfgang Benedek, „EU Action on Human and Fundamental Rights in 2009‟ in Wolfgang Benedek et al (eds), European

Yearbook on Human Rights 2010 (2010), p.88.

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Court of Justice from the constitutional traditions of member states as general

principles of the law of the European Union

In terms of implementation, the associated EU Agency for Fundamental Rights lacks

teeth, being a research and advisory body only180, but the Charter rights are deemed to

be justiciable through the European Court of Justice. Indeed, the UK (and Poland) has

opted out of the Charter through an Optional Protocol, suggesting these rights are not

justiciable in the UK. However, the rationale for the opt-out is that the Charter does not

contain any new rights that are not already available in the EU and the opt-out is only

based on where the Charter is incompatible with UK law181. In reality, regardless of

Member States opting out of the Charter, it will still form the basis of case law decisions

at the European Court of Justice and therefore will remain the primary reference point

for rights within the EU.

The opposition in the UK to the Charter is the same as that opposed to a constitution

for the UK, based on the doctrine of parliamentary sovereignty, rather than courts

having the decision-making role. The Charter introduces certain economic and social

rights that are hard to define in terms of „adequate‟, for which there is no absolute

standard, for example, of food, clothing, housing, etc.182 However, while there is no

modern Bill of Rights for the UK, the Human Rights Act 1998 substantially brings the

European Convention on Human Rights into UK law, indeed, House of Lords European

Committee report in 2000 expressed a preference for the EU to adopt the ECHR to the

wider-ranging Charter183.

The Lords subsequently carried out an assessment of the impact of the Treaty of

Lisbon, which concluded in terms of the UK opt-out of the Charter184:

The Protocol is not an opt-out from the Charter. The Charter will apply in the

UK, even if its interpretation may be affected by the terms of the Protocol.

This has been confirmed by the Secretary of State for Justice in a debate in the House

of Commons on the Charter, that it is a consolidation of existing rights already

established in EU law and that the UK and Polish protocol does not constitute and opt-

out185. Consequently, the Charter remains a reference point for justiciable human

rights in the EU.

180

Website of the EU Agency for Fundamental Rights: http://www.fra.europa.eu/fraWebsite/home/home_en.htm. 181

Jean Paul Jacqué, „Les droits fondamentaux dans le Traité de Lisbonne‟ in Wolfgang Benedek et al (eds), European

Yearbook on Human Rights 2010 (2010), p.129. 182

Ellie Palmer, „The Role of Courts in the Domestic Protection of Socio-Economic Rights: The Unwritten Constitution of the UK‟

in Fons Coomans (ed), Justiciability of Economic and Social Rights: Experiences from Domestic Systems (2006), pp.129-

131. 183

House of Lords European Union Committee – Eighth Report (2000), Paragraph 154:

http://www.publications.parliament.uk/pa/ld199900/ldselect/ldeucom/67/6707.htm#a53. 184

House of Lords European Union Committee, The Treaty of Lisbon: An Impact Assessment – Volume I: Report (2008), p.102:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf. 185

House of Commons European Committee B Debate 14 March 2011, Column 5:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf.

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5 Developments in the Legislation in Northern Ireland

The equality and human rights guarantees are an integral part of the transition from

conflict, with safeguards included in the Belfast Agreement186 and the Northern Ireland

Act 1998187. In addition, the Equality Commission for Northern Ireland and the

Northern Ireland Human Rights Commission monitor and advise on equality and

human rights issues.

A Single Equality Bill188 was considered by the Northern Ireland Executive to harmonise

and update the disparate equality legislation in Northern Ireland, but to date has not

progressed since a consultation in 2004 and a ministerial statement in 2005189. Since

then, the Equality Act 2010190 has been passed in the rest of the UK, but does not

extend to Northern Ireland. The legislation as it stands is not unchallenged, however,

and the UK Government has added equality provisions to its online public policy

discussion forum191. The result of this has been that there is a disparity between the

rest of the UK and Northern Ireland.

The Equality Commission has outlined areas where the equality standards do not

match, noting what the Equality Act does in comparison with equality legislation in

Northern Ireland192:

Harmonisation of equality law to give uniform protection, e.g. giving the same

level of protection on the grounds of colour and nationality as on grounds of

race and ethnic origin

Greater protection for disabled people:

o from indirect discrimination and „discrimination arising from disability‟193,

o from discrimination for carers of disabled people and people wrongly

perceived to be disabled

o from employers asking job applicants questions related to disability prior

to making a job offer

o to define themselves as disabled under a broader definition of disability

o for disabled tenants to have reasonable adjustments to accommodation

186

Text of the Belfast (Good Friday) Agreement 1998: http://www.nio.gov.uk/agreement.pdf. 187

Northern Ireland Act 1998: http://www.legislation.gov.uk/ukpga/1998/47/contents. 188

The notion of a Single Equality Bill is not unchallenged. See the debate in the Northern Ireland Assembly 22 May 2007:

http://www.niassembly.gov.uk/record/reports2007/070522.htm. 189

Single Equality Bill web pages: http://www.ofmdfmni.gov.uk/index/equality/single-equality-bill.htm. Successive Assembly

Questions, the most recent answered on 25 January 2011 (AQW3477/11), have received the response that no policy

decision has been made on the matter. 190

Equality Act 2010: http://www.legislation.gov.uk/ukpga/2010/15/contents. 191

The Red Tape Challenge: http://www.redtapechallenge.cabinetoffice.gov.uk/themehome/equalities-act/./ 192

Equality Commission for Northern Ireland, The Gaps between GB and NI Equality Law – Briefing Note, January 2011:

http://www.equalityni.org/archive/pdf/EqualityAct2010gapsinNI2011.pdf. 193

The Disability Discrimination Act 1995 refers to „disability-related discrimination‟.

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Extension of the prohibition of age discrimination to outside the workplace

Strengthening of equal pay provisions by prohibiting prevention of employees

discussing pay and making certain circumstances of sex discrimination easier

to claim

Provision for employers and service providers to take positive action measures

across equality grounds

Greater protection from harassment and victimisation, for example, harassment

by third parties and victimisation of people who have brought a complaint

Prohibition of direct discrimination on up to two combined grounds

Prohibition of discrimination by private clubs on additional grounds of sex,

religion or belief, pregnancy and maternity, and gender reassignment

Extended protection against discrimination by public bodies

To bridge these gaps, and to harmonise equality standards across the different

grounds, the Equality Commission has made the following recommendations for

legislative change in Northern Ireland194:

Extension of age discrimination to non-employment areas

Amendment to the Race Relations Order 1997195 to ensure protection from

discrimination and harassment on the grounds of colour and nationality at the

same level as other racial grounds, including:

o the exercise of public functions

o definition of harassment

o indirect discrimination

o harassment where a relationship has come to an end

o burden of proof provisions

o genuine occupational requirement test

o mechanism for education complaints

o protection for office holders

Amendment to the Sex Discrimination (Northern Ireland) Order 1976 to prohibit

discrimination and harassment by public authorities on the grounds of sex196

194

Equality Commission for Northern Ireland, Proposals for Legislative Reform, February 2009:

http://www.equalityni.org/archive/pdf/Priorities_for_legislative_reform0602091.pdf. 195

The se points, among others, are reiterated in the Paper on the Formal Review of the Race Relations (NI) Order 1997 by the

Northern Ireland Council for Ethnic Minorities (NICEM) 2009:

http://www.nicem.org.uk/uploads/publications/NICEM_RRO_Review_Paper_final.doc_(no_date_)_.pdf.

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Amendments to the Disability Discrimination Act 1995 (DDA) and the Special

Educational Needs and Disability (Northern Ireland) Order 2005 (SENDO),

including:

o Extension of the definition of discrimination in the DDA to outside

employment in the SENDO to schools

o Removal of the justification defence for a failure to make a reasonable

adjustment in the DDA to outside employment in the SENDO to schools

o Alignment of the reasonable adjustment duty in the DDA for outside

employment to have the same protection as for in employment

o Requirement for landlords to make reasonable adjustments to common

parts of premises where requested by a disabled tenant of occupier

o Prohibition of discriminatory advertisements in the DDA outside

employment in the SENDO to schools

o Prohibition of discrimination in respect of relationships that have ended

in the DDA to outside employment in the SENDO to schools

o Amendment of the rules regarding the reversal of the burden of proof in

discrimination cases in the DDA to outside employment in the SENDO

to schools

Extension of monitoring requirements to grounds of nationality and ethnic

origin197

Removal of the exception in the provisions of the Fair Employment and

Treatment (Northern Ireland) Order 1998 (FETO) regarding secondary schools,

and consideration of the same for primary schools

In terms of human rights, international treaty bodies have urged change in the following

areas:

Prison reform, particularly for women in prisons198

Representation of women in the judiciary199

Lack of implementation of UN Security Council Resolution 1325200

Consideration of a public consultation on reforming abortion legislation201

196

The Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2011 extend the definition of indirect

discrimination to those who would be affected by an action and extend the provisions for taking a discrimination case in

compliance with Council Directive 2006/54 EC (the Recast Directive): http://www.legislation.gov.uk/nisr/2011/156/made. 197

Also a NICEM recommendation, see Note 135, and a recommendation of the Committee on the Framework Convention for

the Protection of National Minorities in 2007, see above. 198

CEDAW 2009. 199

CEDAW 2009. 200

CEDAW 2009.

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Public control methods, particularly the use of riot control projectiles and tasers

against children202

Mental health strategy, particularly those with conflict-related disorders203

Addressing child poverty204

De-segregation of education along religious/community lines205

Ending of post-primary selection by academic testing206

Consideration of the Bill of Rights for Northern Ireland207

Concerns about the independence of inquiries due to limitations and ministerial

control208

Different court proceeding to the rest of the UK, particularly non-jury courts209

The removal of deportation cases from Northern Ireland and the lack of

adequate detention facilities210

Consideration of a Single Equality Bill for Northern Ireland211

Treatment of Irish Travellers212

The extent of inequality and deprivation in Northern Ireland213

Suicide rates, particularly among young people214

Lack of progress on the protection and promotion of the Irish language215

In addition, the Northern Ireland Human Rights Commission has raised the following

points for the forthcoming examination by the Committee on the Elimination of Racial

Discrimination216:

The rights of non-citizens to social protection

201

CEDAW 2009, CESCR 2009. 202

UNCRC 2008. 203

UNCRC 2008. 204

UNCRC 2008. 205

UNCRC 2008, Framework Convention on the Protection of National Minorities 2007. 206

UNCRC 2008. 207

UNCRC 2008, CESCR 2009. 208

ICCPR 2008. 209

ICCPR 2008. 210

ICCPR 2008. 211

CESCR 2009. 212

CESCR 2009, European Social Charter 2006. 213

CESCR 2009. 214

CESCR 2009. 215

CESCR 2009, Framework Convention on the Protection of National Minorities 2007, Convention on Regional and Minority

Languages 2009. 216

Northern Ireland Parallel Report on ICERD (2011):

http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/123/Parallel_report_on_ICERD_(May_2011)_Final.pdf.

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Sectarianism as a form of racism

Discrimination and racist hate crime in Northern Ireland

Internal immigration control and racial profiling

The situation of Irish Travellers

With the exception of sectarianism, these issues were also in the Concluding

Observations for the Republic of Ireland in February 2011217, and as the experience of

recent migration and integration issues in Northern Ireland has been similar to the

Republic of Ireland these issues could be raised at the UK examination in August 2011

in respect of Northern Ireland.

In terms of equality legislation, there is a real prospect of further developments in EU

legislation that will directly impact upon Northern Ireland. These standards can be met

by piecemeal changes to existing legislation, such as the Race Relations Order 1997,

the Disability Discrimination Act 1995 and the Sex Discrimination Order 1976. Indeed,

the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland)

2011218 came into effect in March to implement the EU Recast Directive219, amongst

other things, to include those who would be affected by indirect discrimination to add to

those who are actually affected to be able to take a discrimination case.

However, the passing of a Single Equality Act which incorporated current and predicted

future protections and definitions and harmonised protections across equality grounds

would simplify equality legislation and reduce the need for legislative amendments to a

range of existing pieces of equality law. Such a move could also serve to reduce

differences between legislation in Northern Ireland and the rest of the UK, and indeed

harmonise with the Republic of Ireland in EU standards220.

Human rights standards are less judicable than EU legislation, but the UK has

obligations to uphold minimum standards that, if not met in Northern Ireland, can lead

to international embarrassment. In extremis, the UK retains the right to impose

legislation to fulfil these international obligations. Whether or how the rights contained

in the EU Charter of Fundamental Rights can be implemented remains to be seen, but

the Charter will at the very least influence future EU legislation and be a reference point

for standards in the courts, certainly in the European Court of Justice, but potentially in

domestic courts also.

217

Consideration of reports submitted by States parties under article 9 of the convention - Concluding observations of the

Committee on the Elimination of Racial Discrimination – Ireland, 10 March 2011:

http://www2.ohchr.org/english/bodies/cerd/docs/co/Ireland_AUV.pdf. 218

Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2011:

http://www.legislation.gov.uk/nisr/2011/156/made. 219

EU Directive 2006/54/EC. 220

The Equal Status Act 2000 has been amended in 2004 and 2008 to take account of EU equality Directives:

http://www.irishstatutebook.ie/2000/en/act/pub/0008/index.html.

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The Belfast Agreement states221:

The new Northern Ireland Human Rights Commission (see paragraph 5

below) will be invited to consult and to advise on the scope for defining, in

Westminster legislation, rights supplementary to those in the European

Convention on Human Rights, to reflect the particular circumstances of

Northern Ireland, drawing as appropriate on international instruments and

experience. These additional rights to reflect the principles of mutual respect

for the identity and ethos of both communities and parity of esteem, and -

taken together with the ECHR - to constitute a Bill of Rights for Northern

Ireland.

The notion of a Northern Ireland Bill of Rights had been debated before the Agreement

and its inclusion in the political settlement raised hopes for those campaigning for such

an initiative222. A cross-sectoral, cross-party Bill of Rights Forum published its report in

March 2008223 and the Human Rights Commission published its Advice to Government

in December of that year224. A Government response in November 2009 outlined some

additional rights for consideration in Northern Ireland225, which was subject to public

consultation226.

A Northern Ireland Bill of Rights has in some respects been linked to processes for the

UK as a whole. The House of Lords and House of Commons Joint Committee on

Human Rights recommended a Bill of Rights and Freedoms in 2008227. A UK

Government Green Paper in 2009 set out a range of options for discussion228, but

substantive progress on a British Bill of Rights or a UK Bill of Rights has not been in

evidence to date, but the UK coalition government‟s Programme for Government

promises the following229:

We will establish a Commission to investigate the creation of a British Bill of

Rights that incorporates and builds on all our obligations under the European

221

Belfast Agreement, 1998, Rights, Safeguards and Equality of Opportunity. 222

For example, the Human Rights Consortium, an alliance of organisations campaigning for a strong and inclusive bill of rights:

http://www.billofrightsni.org/. 223

Bill of Rights Forum, Final Report: Recommendations to the Human Rights Commission for a Bill of Rights for Northern

Ireland, 31 March 2008: http://www.billofrightsforum.org/borf_final_report.pdf. 224

Northern Ireland Human Rights Commission, Advice to Government on a Bill of Rights for Northern Ireland, 10 December

2008:

http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/51/A_Bill_of_Rights_for_Northern_Ireland_%28December_200

8%29.pdf. 225

Northern Ireland Office, A Bill of Rights for Northern Ireland: Next Steps, November 2009:

http://www.nio.gov.uk/consultation_paper_-_a_bill_of_rights_for_northern_ireland__next_steps.pdf. 226

Responses to the consultation, Northern Ireland Office website: http://www.nio.gov.uk/index/public-consultation/archive-

consultation/content-responses-bill-of-rights.htm. 227

Joint Committee on Human Rights, A Bill of Rights for the UK? 21 July 2008:

http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/165/165i.pdf. 228

Ministry of Justice, Rights and Responsibilities: Developing our Constitutional Framework, March 2009:

http://www.justice.gov.uk/publications/docs/rights-responsibilities.pdf. 229

Cabinet Office, The Coalition: Our Programme for Government (2010), p.11:

http://www.cabinetoffice.gov.uk/sites/default/files/resources/coalition_programme_for_government.pdf.

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Northern Ireland Assembly, Research and Information Service 38

Convention on Human Rights, ensures that these rights continue to be

enshrined in British law, and protects and extends British liberties.

However, in a debate in the House of Lords, Lord McNally indicated that there was a

commitment to a Northern Ireland Bill of Rights and that it was a separate process

from the UK Bill of Rights230.

A Private Member‟s Bill to repeal the Human Rights Act and set out principles for a UK

Bill of Rights was introduced into the House of Commons in July 2010231.

230

HL Deb 24 January 2011 Column 677: http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110124-0001.htm. 231

The Second Reading and debate is timetabled for 16 December 2011; Rights Bill 2010-2011:

http://services.parliament.uk/bills/2010-11/rights.html.

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Appendix: Comparative Table of European and International

Equality and Human Rights Standards

Equality

Dimension

NI Legislation EU Standards Council of

Europe

Standards

UN Standards

Religious belief Fair

Employment

and Treatment

Order 1998 as

amended

Employment

Framework

Directive

2000/78/EC

ECHR Art 9 CERD

Political

opinion

Fair

Employment

and Treatment

Order 1998 as

amended

CFR Art 10 ECHR Art 10 UDHR Art 19

Racial group Race Relations

Order 1997 as

amended

Race Directive

2003/43/EC

Charter on

Minority

Languages

Convention on

National

Minorities

CERD

Age Employment

Equality

Regulations

2006

Employment

Framework

Directive

2000/78/EC

Marital status NI Act 1998

Sect 75

Equal

Treatment

Directive

2002/73/EC

ECHR Art 12 UDHR Art 16

NIAR 313-011 Equality and Human Rights Legislation in Northern Ireland

Northern Ireland Assembly, Research and Information Service 40

Sexual

orientation

Employment

Equality

Regulations

2003

Equality Act

Regulations

2006

Employment

Framework

Directive

2000/78/EC

Men and

women

Equal Pay Act

1970 as

amended

Sex

Discrimination

Order 1976 as

amended

Equal

Treatment

Directive

2002/73/EC

Gender

Directive

2004/113/EC

Domestic

Violence

Convention

CEDAW

Disability Disability

Discrimination

Act 1995 as

amended

Employment

Framework

Directive

2000/78/EC

CRPD

Dependents Employment

Equality (Sex

Discrimination)

Regulations

(Northern

Ireland) 2005

Pregnant

Workers

Directive

92/85/EEC

Parental Leave

Directive

96/34/EC

ECHR Art 8 CRC